Hong Kong's 1997 transition: U.N. enforcement mechanisms to guarantee Hong Kong's human rights will endure after the transition.

• Author: Vachon, Christyne J.

1. INTRODUCTION

   On July 1, 1997 the British handed Hong Kong back to the Chinese. As I walked through Sheung Wan, Hong Kong on that day, I wondered what impact the transition would have on Hong Kong residents. Had they heard of China's promises?(1) Were they concerned that China would not uphold these promises?(2) I witnessed the fanfare and festivities of the transition. I spoke with many people who had different views on its effects. One taxi driver expressed his fear that over the next fifty years, based on China's governmental influence, he would have to live in fear of every word he spoke and the possibility that he could be snatched up and detained as a prisoner. Contrarily, a member of the legal community shrugged his shoulders and expressed passing interest in the effects of the transition. What are the reasons for the public's uncertainty? My curiosity was provoked. Were there any sort of legal mechanisms to guarantee that the promises made in the international agreements pertinent to the transition, the Joint Declaration and the Basic Law, would be kept?

   China committed itself to the Joint Declaration: Agreement on the Future of Hong Kong (Joint Declaration)(3) and the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China (Basic Law)(4) to appease the rest of the world and to provide assurance for a smooth transition for Hong Kong back to Chinese rule.(5) Pursuant to these agreements, China promised that Hong Kong will be basically autonomous and that the rule of law in Hong Kong will remain virtually unchanged for fifty years after the transition.(6) This would mean that those laws in place prior to the transition would remain applicable for fifty years after the transition, thereby assuring certain protections to the citizens of Hong Kong.(7) It is difficult to predict, however, whether China will actually uphold these agreements.(8)

   Some argue that, at the very least, China has dubious intentions towards upholding these legal agreements. China's scarred reputation of not upholding agreements strengthens this argument.(9) Furthermore, the legal policies of China do not favor ensuring international agreements;(10) and China's human rights' tradition towards its citizens is replete with violations.(11) Other people argue that China has already violated parts of these agreements.(12) Possible violations range from abolishment of the Legislative Council(13) to cancellation of a series of laws that ensured civil and political rights in Hong Kong.(14)

   In light of this, the international community will likely act to ensure China's compliance. What mechanisms are available to do this? If such mechanisms fail and China violates the terms of the agreements, are there mechanisms for punishment?

   Many international actors might have a role to play.(15) However, the focus of this piece is the United Nations and its ability to encourage China to fulfill its human rights promises through the International Covenant on Civil and Political Rights (ICCPR)(16) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).(17) These covenants are made applicable to Hong Kong through provisions of the Joint Declaration and the Basic Law.

   This article is structured as follows: Part II introduces the general history of relations between China and Great Britain including a brief synopsis of the interplay of relevant agreements. Part III provides a more detailed analysis of the agreements pertinent to the Hong Kong transition; the Joint Declaration and the Basic Law. Part IV identifies the need for this analysis. Part V analyzes the relevant U.N. covenants.

2. HISTORY OF CHINA AND GREAT BRITAIN'S RELATIONSHIP

   The history of relations between the United Kingdom and the People's Republic of China regarding Hong Kong is critical to an understanding of the potential problems the world community faces in trying to make China comply with the Joint Declaration and the Basic Law.(18)

   At the beginning of the 19th century, Hong Kong was a small parcel of rocky land.(19) It was undeveloped(20) and had a small population.(21) Trading conflicts between western nations and China provoked the Opium War of 1840, the First Anglo-Chinese War.(22) China's attempt to halt the British import of opium into China, further aggravated the conflicts between China and Great Britain.(23) After much wrangling, the Convention in the Treaty of Nanking of 1842 expanded the rights of the British to provide imports to China, compensated the British for the destroyed opium, and established Great Britain's possession of Hong Kong "in perpetuity."(24) On June 26, 1843, Hong Kong formally came into British possession following the conclusion of the Opium War.(25)

   The Second Anglo Chinese War occurred in 1860 and Great Britain acquired the southern tip of the Kowloon peninsula and Stonecutters Island.(26) At the end of that century, China, greatly weakened by the Sino-Japanese War, was forced to make additional concessions to Great Britain.(27) Great Britain leased the remainder of Kowloon from China in 1898 with a ninety-nine year lease of the "New Territories" designated to end on July 1, 1997.(28)

   Through the years, China has continued to nurse the open wound created by Britain's acquisition of the Hong Kong territories.(29) Nonetheless, since 1898 Hong Kong has been a British colony and the laws and policies of the United Kingdom have governed Hong Kong.(30) Laws enacted in Parliament in England either directly affected Hong Kong law or indirectly affected Hong Kong law via statutory implementation.(31)

   In 1949, communism was established in China with the success of the Chinese Communist Revolution.(32) China established a civil law system, but this system was unable to replace the traditional beliefs of Confucianism.(33) A communist Shanghai became less attractive as the primary trade port into China.(34) Instead, Hong Kong rapidly became the center of trade with China.(35) The 1950s were significant years for Hong Kong as it increased its importance in the international community.(36)

   Hong Kong's vulnerability to the influences of China became obvious when, as a result of the Great Leap Forward and the Cultural Revolution in China, Hong Kong experienced societal upheavals.(37) Since Hong Kong had become an integral part of international trade and the date for Hong Kong's transition back to China loomed closer, Hong Kong residents and international onlookers became concerned about the ground rules for the transition.(38)

   This concern provided the push to Great Britain and China to sign the Sino-British Joint Declaration,(39) the reversion agreement, on December 19, 1984.(40) The Joint Declaration is the precursor to the Basic Law,(41) the final plan of law and government for post-transition Hong Kong. Requirements for the Basic Law stem from the Joint Declaration's demands that the Basic Law must enumerate and ensure all the guarantees provided in the Joint Declaration.(42) Between the time that the Joint Declaration took effect on December 19, 1984 and the last day of British rule on June 30, 1997, the Government of the United Kingdom was responsible for the "administration of Hong Kong with the object of maintaining and preserving its economic prosperity and social stability."(43) The government of China was to cooperate towards this end.(44)

   The 1989 Tiananmen Square massacre in China created a tremendous scare in Hong Kong. The British colonial government responded by passing the Bill of Rights Ordinance (BRO) and amending their current laws to comply with the BRO.(45) The Hong Kong BRO incorporated the ICCPR into Hong Kong rule of law.(46) To avoid protest from China that the BRO violated the Joint Declaration, Great Britain copied the ICCPR almost identically.(47) China was nonetheless agitated and indicated that the BRO was unnecessary because the Basic Law already provided adequate protection of rights.(48)

   In 1994, Governor Patten established limited economic and political reforms, including electoral reforms.(49) The reforms were to "safeguard Hong Kong's way of life, the way of life set out in page after page of the Joint Declaration ..." and to provide for more democracy post-1997.(50)

   On July 1, 1997 Hong Kong transitioned from British colonial rule to the Hong Kong Special Administrative Region of China (SAR).(51) No longer subject to the administration of Great Britain, Hong Kong law became administered by China based on Deng Xiaoping's "one country, two systems" policy.(52) This policy was guaranteed in the Sino-British Joint Declaration and promulgated in the Basic Law.(53) In the past, when the British have ceded a territory, they have established a clear and detailed plan for the change.(54) The usual and most ideal procedure would have been for the existing legislature in Hong Kong, the Legislative Council (LegCo),(55) to provide rules for the new incoming legislature. However, China would not allow this type of conversion.(56) Instead, the new government of Hong Kong started with a new plan of law, the Basic Law.(57)

3. AGREEMENTS PERTINENT TO THE HONG KONG TRANSITION

   1. The Joint Declaration: An International Agreement

      The Sino-British Joint Declaration is a treaty expressing the general agreement that the common goal of the government of the United Kingdom and the government of the People's Republic of China is for China to resume authority over Hong Kong on July 1, 1997.(58) Ratified in 1985,(59) the Joint Declaration provides the framework for the transition of control agreed to by China and the United Kingdom,(60) for the interactions between Hong Kong and China after the transition occurs (committing the "one country, two systems" polity to writing),(61) and for the establishment of the Basic Law.(62)

      The Joint Declaration institutes the general framework agreed to by China,(63) in which China guarantees a high degree of autonomy and basic human rights for Hong...